IPLS SERVICES: CONSTITUTIONAL COURT OBSERVER

Decision No 59

Tirana, 5 November 1999
Applicant: Supreme Court of the Republic of Albania
Interested Parties:
  1. Assembly of the Republic of Albania in absentia
  2. Council of Ministers represented by Mr. Sokol Como, Deputy Minister of Justice
  3. High Council of Justice in absentia
  4. Mr. Ali Paja, represented by Mr. Maksim Haxhia, Private Attorney
Subject case:

Abrogation on unconstitutional grounds of Article 48 of Law No 8436 dated 28 December 1998 "On Organization of Judicial System in the Republic of Albania".

Legal Basis: Article 145/2, 147/6 of the Constitution.

Constitutional Court

After having heard representatives of interested parties and substantially examined the case,

Observed

Supreme Court Joint Chambers with Decision No 585, dated 14 July 1999, have admitted application from the representative of Mr. Ali Paja, the petitioner, and according to Article 145/2 of the Constitution have suspended the case in order to transfer it to the Constitutional Court. The Decision of the Joint Chambers have observed that Article 48 of Law No 8436, dated 25 May 1999 " On Organization of Judicial System in the Republic of Albania" runs against Article 147/6 of the Constitution. The Decision of Joint Chambers observe that even though qualification exam aims at assessment of "professional sufficiency or insufficiency" "it went beyond constitutional criteria when it comes to dismissal of a judge for not passing the exam".

Under this decision, setting of a period of time of ten years of job experience causes inequality of judges’ rights. Finally, the Joint Chamber, have observed that Article 48 being a transitory provision of the aforesaid law violates requirements of Article 45 which governs the assessment of professional capability of judges.

The Constitutional Court observes that Article 48/1 of Law No 8436, dated 28 December 1998 "On Organization of Judicial System in the Republic of Albania" which provides for the obligation of first level courts judges with up to ten years of job experience to sit for the exam of professional skills is not unconstitutional.

The Constitution of the Republic of Albania and other international acts, such The Chart of Fundamental Principals of Independence of the Judiciary while approving the need for qualified judges, provide also the need to dismiss them in case of professional insufficiency.

From understanding of paragraph 1 of Article 48, professional sufficiency exam aims at professional qualification, to increase the level of judges in terms of professional qualification and integrate them with modern development in the area of law. During 1991-1998 and on old legislation in Albania was abrogated and a new Constitution and Codes were approved instead, containing many new norms and principals. Under such circumstances, when professional level of conducting a trial is very problematic, it is a necessity that professional qualification of judges advances along with the legislation. Therefore, assessment of their knowledge under new circumstances and for the new Codes, cannot be interpreted as casting a doubt on the diploma issued by the faculty neither it can be interpreted as threatening the autonomy of institutions of high education in the understanding of Article 57/7 of the Constitution. On the contrary, a better implementation of the constitutional principle of independence of judges and their accountability solely to the Constitution is ensured through professional training. (Article 145/1 of the Constitution). The same view was taken in the Decision of Constitutional Court No 6, dated 10 July 1995.

There are many forms of professional qualification, organization of the exam is one of them, which not only stimulates judges to study, but in the mean time is a means to assess the level of any knowledge of each judge in the framework of general professional assessment.

In this view, participation in the exam means, performing a legal obligation, which every judge should comply with according to criteria, set by this law. Fulfillment of this obligation is not left in the hands of the judges, while responsibility for non-fulfillment of this obligation is individual and observed on case by case practice depending on reasons given in each case.

Obligation of judges with a job experience up to 10 years to sit for the exam, in other terms the setting of the time-limit in the law, has nothing to do with violation of the Constitution, but with the right of the legislator to define the necessary professional qualification and categories of those employees who are subject of this kind of qualification. The exam does not lead to differentiation of constitutional rights because the aim of the exam is not threatening those rights, but qualification of judges and this is in conformity with the content of the Constitution.

Third paragraph of Article 48 stating "… judges who do not pass the exam shall be dismissed from the job with Decision of High Council of Justice….", applies only to those judges, who sat for the exam, but did not reached the sufficient number of points to pass the exam.

Law No 8436, dated 28 December 1998 "On Organization of Judicial System in the Republic of Albania" has defined not only the criteria to assess professional ability or inability, but its indicators as well, such as: quality, volume of the work done, reputation, number of legal publications, or whether judge has taken the qualification test. From the understanding of this law and in particular of Article 147/6 of the Constitution, the Constitutional Court comes to the conclusion that professional insufficiency is a concept broader than a mere failure to take the exam. The latter cannot be the sole proof to assess professional ability. Article 45, which deals specifically with assessment of professional ability links it to some indicators mentioned above. These arguments along with exam’s inherent problems such emotive and psychological features, requirement for the sufficient amount of time, etc., indicate that failure to take the exam must be seen in the context of other indicators mentioned in Article 45 of Law No 8436, dated 28 December 1998. Having been based on exam’s result without considering judge’s work experience, theoretical and practical contribution is unconstitutional as it comes out from the understanding of the Constitution. Therefore, third paragraph of Article 48 stating "Regardless of definition of Article 27 of this Law, judges who do not pass the exam, shall be dismissed with Decision of the High Council of Justice" must be abrogated.

Therefore

The Constitutional Court of the Republic of Albania, in pursuance with Articles 131/a, 134/d relating to Article 145/2 of the Constitution of the Republic of Albania and Article 41 of Law No 8373, dated 15 July 1998 "On Organization of the Constitutional Court of the Republic of Albania, in unanimity,

Held

To abrogate third paragraph of Article 48 of Law No 8436 dated 28 December 1998 "On Organization of Judicial System in the Republic of Albania" as unconstitutional. The Court refused other parts of the application.

This decision is final, cannot be appealed and comes into force with its publication in the Official Journal.


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